Welker Customer Terms and Conditions

Conditions for Acceptance of Request for Quote or Purchase Order

These Terms and Conditions are the exclusive terms under which Welker sells products to its customers. These Terms and Conditions are specifically incorporated into and made a part of any agreement or contract between Welker and any purchaser of products.

Definitions

'Welker' is Welker Engineered Products Inc., 1401 Piedmont, Troy, Michigan, which is the supplier of the Goods.

'Confidential Information' shall include product information and plans, documents, records, information and data (whether verbal, electronic or written), drawings, models, apparatus, blueprints, sketches, designs, schedules, product plans, marketing plans, technical procedures, manufacturing processes, analyses, compilations, studies, software, prototypes, samples, formulas, methodologies, formulations, patent applications, know-how, experimental results, specifications and other business information and trade secrets of Welker, its dealings or transactions with any of its suppliers, agents distributors or customers, as well as any and all analyses, compilations, work product, studies and other data or material prepared by or in the possession or control of the Purchaser, which contain, include, refer to or otherwise reflect or are generated from any Welker Confidential Information or Intellectual Property.

'Contract Documentation' consists of the Request for Quote, the Purchase Order (except as noted below), these Terms and Conditions, the Specifications, the delivery schedule (if applicable) and any other documents specified in the Purchase Order or signed by the Parties, all of which may be referred to as the "Agreement."

'Goods' are the materials, products, assemblies and/or services identified in the Purchase Order and are the subject matter of the Agreement.

'Intellectual Property' shall include but not be limited to all inventions, discoveries, techniques, processes, methods, formulae, ideas, technical data and specifications, testing methods, research and development activities, computer programs and designs (including improvements and enhancements and regardless of patentability), trade secrets and know-how, all copyrightable material that is conceived, developed, or made by Welker, alone or with others.

'Purchaser' is the issuing person, firm, company, authority, or corporation indicated on the Purchase Order or Request for Quote.

'Purchase Order' is the Welker form that records the details and Specification of the Goods to be provided by Welker to the Purchaser.

'Purchase Price' is the price to be paid to Welker by the Purchaser in accordance with the Agreement as stated on the Purchase Order.

'Approval Drawing' is the drawing template for custom components which have part numbers beginning with S0. The drawing template ensures that the design inputs supplied by the Purchaser have been met. A signed Approval Drawing may be required to initiate a Purchase Order.

'Specification' is represented by the part number(s) entered onto the Purchase Order, or means any specification for the Goods that has been agreed by the Parties in writing from time to time.

1. SALE OF GOODS BY WELKER TO PURCHASER

1.1. Welker will agree to sell Goods to Purchaser under these Welker Terms and Conditions. Welker and Purchaser will prepare and approve the worksheet or other document that will be the Purchase Order and will describe the Goods to be provided and the other terms related to the sale of Goods. If any other form is accepted by Welker from Purchaser as a purchase order or order of goods for products, only the terms on that order document related to quantity, description of the Goods and delivery times will be applicable. No other terms or conditions contained in any other such order document will apply and are explicitly objected to and rejected by Welker.

1.2. There will be no valid or binding agreement for the sale of Goods unless and until Purchaser accepts the proposal from Welker.

1.3. The quoted Purchase Price is valid for 30 days. Welker reserves the right, by giving notice to the Purchaser at any time before the Agreement date that the price of the Goods will be increased to reflect any increase in the cost to Welker which is due to any cause beyond the control of Welker. There is a minimum domestic order amount of $50 in US currency and a minimum international order amount of $100 in US currency

2. DELIVERY

2.1. Welker will endeavor to have the Goods ready for the delivery date requested by Purchaser but it is agreed that the Purchaser shall not be entitled to terminate this Agreement by reason of Welker's failure to deliver by the proposed date. For the avoidance of doubt, Welker may deliver the Goods in advance of the quoted delivery date upon giving reasonable notice to the Purchaser. Welker shall not be liable to the Purchaser for any losses caused to the Purchaser by late delivery of the Goods.

2.2. Delivery terms are Ex Works Welker's location (Incoterms 2010). It is a condition of this Agreement that the Purchaser shall collect and take delivery of the Goods at Welker's location.

2.3. If Purchase requests that Welker ship the Goods, Purchaser will give Welker instructions for the delivery at the Purchaser's expense. If requested, Welker will ship the Goods via UPS (United Parcel Service) or other similar service unless otherwise specified. Purchaser assumes the risk of loss once the Goods have been delivered to the courier or common carrier. The Purchaser shall at its own risk promptly unload all Goods on delivery to the designated location.

2.4. Welker shall give the Purchaser notice of any delay and the reasons for the delay as soon as reasonably practicable, provided that Welker shall incur no liability by reason of any failure to give notice. If the delay, is due to a force majeure event, Welker's duty to deliver shall be suspended for so long as the circumstances continue and the time for delivery shall be extended by an equivalent period. Welker may at any time, and at its sole discretion, give notice to the Purchaser to terminate the Agreement. In that case Welker shall incur no liability to the Purchaser for losses caused as a result of the termination.

3. QUANTITIES

3.1. For orders of Goods which by their nature are of a larger quantity (such as manufactured bearings), Welker reserves the right to over or under ship by 10% on production orders. Welker will always endeavor to meet Purchaser's delivery schedule but shall be entitled to deliver the Goods by installments of any size and in any order. Where the Goods are delivered in installments, each delivery shall constitute a separate contract and failure by Welker to deliver any one or more of the installments shall not entitle the Purchaser to treat the Agreement as a whole as repudiated.

3.2. In the case of delivery in excess of 10% Welker will make arrangements for the excess to be returned to Welker at its own expense if so requested by Purchaser. In the case of short delivery Welker may at its own discretion either make good the shortfall by one or more further deliveries or reduce the Purchase Price by the same proportion as the shortage bears to the contract quantity. Welker shall not be liable for any losses or damages caused by excess or short delivery.

4. LIMITED WARRANTIES; DISCLAIMER

4.1. Standard Limited Warranty. Welker warrants to its customers purchasing products manufactured by Welker that such products are free from defects in workmanship and materials. Any discrepancies must be reported within 30 days. Welker will evaluate any claimed defect and will repair defects in its manufactured product determined by Welker to be the result of defective workmanship and /or materials or replace the products. This warranty automatically expires three years from the date of Welker's delivery of the products to Purchaser.

4.2. Third Party Products. Products produced by other manufacturers and incorporated into Welker products carry that manufacturer's warranty.

4.3. Special Warranty Provisions. Welker provides certain Goods that carry different warranties or have special requirements for the warranty to be valid.

4.3.4. Warranty for Dimplers is limited to 1,000,000 cycles or 3 years, whichever occurs first.

4.3.5. Dimples are perishable tooling and carry no warranty.

4.4. Exclusions. Welker's limited warranty will be void if Welker determines the product(s) were misapplied, abused, or modified by Purchaser or any other party.

4.5. RMA Required. Any product claimed by Purchaser to be defective in workmanship or materials must be returned to Welker freight pre-paid for evaluation. A Returned Material Authorization (RMA) number is required for all returns. Purchaser should call 800-229-0890 to obtain the RMA. Welker shall not be liable for labor cost incurred in the removal of a defective part or the installation of any replacement part.

4.6. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE GOODS ARE PROVIDED TO PURCHASER ON AN "AS IS" BASIS AND WELKER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THIS AGREEMENT OR THE GOODS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.

5. DUTIES OF THE PURCHASER

5.1. Purchaser shall be responsible to Welker for ensuring the accuracy of the terms of any Contract Documentation and for giving Welker any necessary information relating to the Goods within a reasonable time to enable Welker to perform the Agreement in accordance with its terms. If the Goods are to be manufactured or any process is to be applied to the Goods by Welker in accordance with Purchaser's Specifications in the Contract Documentation, the Purchaser agrees to indemnify Welker against all loss, damages, costs and expenses awarded against or incurred or paid or agreed to be paid by Welker in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Welker's use of the Specification.

5.2. The Purchaser shall not (unless Welker gives prior written permission) resell any Goods supplied under the Agreement from which any label or logo has been removed or altered.

6. PRICE AND PAYMENT

6.1. Welker shall invoice the Purchaser for the price of the Goods on or at any time after the Goods are delivered or tendered for delivery. Where the Goods are to be collected by the Purchaser, Welker may invoice the Purchaser on or at any time after Welker has notified the Purchaser that the Goods are ready for collection. The price of the Goods shall be Welker's quoted price or, where no price has been quoted or agreed, the price listed in Welker's published price list current at the date of the Agreement. The price is exclusive of any applicable taxes imposed on the sales of goods or services, including any value added tax, which the Purchaser agrees to pay to Welker unless a valid exemption certificate is provided to Welker at the time of the Purchase Order. If credit has not been established by Purchaser with Welker, Welker may require advance payment prior to shipment.

6.2. Payment in full of the Purchase Price is due 60 days from the date of Welker's invoice on open accounts. A 1% discount may be applied if the Purchase Price is paid within 30 days from the date of Welker's invoice. Visa and Master Card are accepted forms of credit card payment. A convenience fee may be assessed for the use of credit cards.

6.3. If the Purchaser fails to pay in full on the due date for payment any amount due to Welker, then, without prejudice to any other right or remedy available to Welker, Welker may cancel any other orders from Purchaser or suspend any further deliveries to the Purchaser. Any past due amounts will accrue interest at the rate of one (1%) per month or the highest rate allowed by law, if lower.

6.4. Special Invoicing Requirements; Return Charges. Purchaser will be billed one half of tooling charges when the order is placed with balance of tool charges payable upon approval of samples. All orders for specials and non-standard production parts are non-cancellable and non-returnable. A 30% re-stocking fee will be applied for all standard catalog engineered products returned to Welker in new and unused condition. Custom S0-numbered components (Specials), all slides, and products over 6 months old will not be accepted for return.

7. RELIANCE; CORRECTIONS

7.1. Any advice or recommendation given by Welker's employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which are not confirmed in writing by Welker are followed or acted upon entirely at the Purchaser's own risk, and accordingly Welker shall not be liable for any such advice or recommendation.

7.2. Any typographical, clerical or other error or omission in any of the Contract Documentation, sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Welker shall be subject to correction without any liability on the part of Welker.

8. LIMITATION ON DAMAGES

THE ENTIRE LIABILITY OF WELKER UNDER OR IN CONNECTION WITH THIS AGREEMENT AND WITH RESPECT TO ANY CLAIM SHALL NOT EXCEED THE PRICE PAID BY PURCHASER FOR THE GOODS THAT ARE RELATED TO THE CLAIM.

9. LIMITATION ON LIABILITY

UNDER NO CIRCUMSTANCES SHALL WELKER BE LIABLE TO PURCHASER OR ANYONE ELSE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER DIRECT OR INDIRECT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DOWN TIME OR PERSONAL INJURY, ARISING OUT OF OR RELATED TO ANY GOODS OR ANY PRODUCTS SOLD OR MANUFACTURED BY WELKER.

10. TERMINATION OF ORDERS

No order which has been accepted by Welker may be cancelled by the Purchaser except with the agreement in writing of Welker and on terms that the Purchaser shall indemnify Welker in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges, partially completed work and expenses incurred by Welker as a result of cancellation.

11. INSOLVENCY OF PURCHASER

In the event that the Purchaser ceases to operate, becomes insolvent, is subject of any voluntary or involuntary insolvency proceeding or makes any voluntary or involuntary arrangement with its creditors, Welker shall be entitled to cancel the Agreement or any order placed by Purchaser or suspend any further deliveries under the Agreement. If the Goods have been delivered but payment has not been made, the Purchase Price shall become immediately due and payable. If Purchaser is unable to pay for Goods in its possession, Welker reserves the right to reclaim any Goods for which payment has not been made.

12. FORCE MAJEURE

12.1. Welker shall not be liable to the Purchaser or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform any of Welker's obligations in relation to the Goods, if the delay or failure was due to any cause beyond Welker's reasonable control (a 'force majeure'), including any Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, difficulties in obtaining raw materials, labor, fuel, parts or machinery, power failure or breakdown in machinery.

12.2. If the force majeure continues for a period in excess of one month, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable. If the force majeure continues for more than six months, either party may terminate this Agreement or cancel any pending orders which are affected by the force majeure.

13. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

13.1. The Purchaser is aware that during the course of dealings with Welker it may have access to and be entrusted with information related to Welker's business, finances and other information of a confidential nature. Confidential Information and Intellectual Property furnished to Purchaser and/or Purchaser's affiliates, employees, officers, owners, agents, consultants or representatives, in the course of their work contemplated in this Agreement, regardless of whether such Confidential Information has been expressly designated as confidential or proprietary, is subject to the obligations under this section. Confidential Information may be provided in written, oral, electronic or other form. Purchaser acknowledges that no representation or warranty, express or implied, has been or is made by or on behalf of Welker as to the accuracy or completeness of any of the information furnished to the Purchaser.

13.2. The Purchaser shall not disclose any Welker Confidential Information or Intellectual Property to any person (except its employees that have the need to know the information and are subject to obligations of confidentiality) during or after the period of this Agreement, and shall use its best endeavors to prevent the publication or disclosure of any such information. All Confidential Information and Intellectual Property of Welder disclosed to the Purchaser shall be and remain the property of Welker and must not be used by Purchaser in any way. Purchaser is prohibited from using Welker's designs or any other Confidential Information or Intellectual Property, including using such information to remanufacture any Welker products, whether directly or indirectly. Upon Welker's written request, Purchaser shall promptly return all confidential information or certify its destruction in writing.

13.3. If Welker agrees to transfer or assign any rights in Intellectual Property to Purchaser as part of the development of custom Goods, that agreement must be specifically documented by the Parties and that document approved and signed by Welker. Any rights not specifically assigned are retained by and remain the Intellectual Property of Welker. Welker is not prohibited or limited in any way from using any skills, know-how, designs, processes or other information related to the assigned Intellectual Property, and Purchaser grants Welker a perpetual, royalty-free license to use the assigned Intellectual Property in the normal course of its business.

14. APPLICABLE LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, exclusive of its choice of laws provisions. Purchaser agrees that any cause of action, suit or proceeding relating to, arising out of or in connection with this Agreement with the business relationship between Purchaser and Welker shall be subject to the exclusive jurisdiction of the state courts located in Oakland County, Michigan, or in the United States District Court, Eastern District of Michigan, if such federal court possesses subject matter jurisdiction. Purchaser hereby waives any objection to personal jurisdiction and venue in any proceeding before said courts.

15. SEVERABILITY

If any provision of this Agreement is determined by a court to be unlawful, void, or unenforceable, the provision shall, to the extent required, be ineffective but will be interpreted to effectuate the intent of the provision as far as is possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other provisions or affect the validity or enforcement of this Agreement.

16. WAIVER

No delay, neglect or forbearance on the part of either Party in enforcing against the other Party any of these Terms and Conditions shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either Party is exclusive of any other right, power or remedy available to that Party.

17. AGENCY, PARTNERSHIP

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between Welker and the Purchaser other than the contractual relationship expressly provided for in the Agreement.

18. FINAL AGREEMENT; VARIATION AND PREVALENCE

This Agreement is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties regarding the subject matter of this Agreement unless specifically made part of the Contract Documentation. If there is any inconsistency between any of the documents that form this Agreement, then the details on the Purchase Order shall prevail except that nothing will be deemed to modify Sections 4 or 7 through 18 of these Terms and Conditions. No variation to these conditions shall be binding unless agreed in writing between the authorized representatives of the Purchaser and Welker.